Inspector Barber v Tumut Shire Council

Capral Aluminium v WorkCover Authority (2000) 49 NSWLR 610 Dept Mineral Resources v Kembla Coal & Coke (1999) 92 IR 8 Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275 Lawrenson Diecasting v WorkCover (NSW) (1999) 90 IR 464 Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 CASES CITED: Markarian v R (2005) 215 ALR 213 Morrison v Powercoal Pty Ltd (2003) 130 IR 364 Riley v Australian Grader Hire (2001) 103 IR 143 WorkCover Authority (NSW) v McDonalds (2000) 95 IR 383 WorkCover Authority of NSW (Inspector Glass) v ACI Operations Pty Limited (unreported, Matter No CT 1025 of 1993, 18 March 1994) WorkCover v Maine Lighting Pty Ltd (1995) 100 IR 248

PROSECUTOR Mr R Reitano of counsel Solicitor: Mr G Diggins WorkCover Authority of NSW LEGAL REPRESENTATIVES:

DEFENDANT Mr D Jordan of counsel Solicitor: Ms C Holt Sparke Helmore

Prosecution under s 8(1) of the Occupational Health and Safety Act 2000

1 Gocup Road is the main connecting road between Tumut and Gundagai. In October 2003 Tumut Council (later renamed the Tumut Shire Council, which is the defendant in these proceedings) was carrying out upgrade works on the Road. Robert John Turner was employed by the Tumut Council through its trading arm, Snowy Works and Services, as a Traffic Controller. Towards the end of the working day, at about 4.15 pm on 31 October 2003, Mr Turner, in company with two other employees, Mark Anthony Marlowe and Murray Dean Brooks, was engaged in turning a number of traffic signs on the Road so that the signs faced away from oncoming traffic, and covering other signs so that they could not be observed by oncoming traffic. 2 Mr Brooks was having trouble turning a sign situated on the opposite side of the road to where Mr Turner was standing. Mr Turner stepped out onto Gocup Road in order to cross to the right hand side and assist Mr Brooks when a car travelling in the direction of Gundagai struck him. Mr Turner died as a result of the injuries he received when struck by the car. 3 As a consequence of what occurred on 31 October 2003, Inspector Mark Barber of the WorkCover Authority of New South Wales, made application for an order pursuant to s 246(1) of the Criminal Procedure Act 1986 as applied by s 168 of the Industrial Relations Act 1996, that the defendant appear before the Court to answer a charge that it contravened s 8(1) of the Occupational Health and Safety Act 2000. Section 8(1) provides: 8 Duties of employers (1) Employees

An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 4 It was alleged in the Application for Order that the defendant: [F]ailed to ensure the health, safety and welfare at work of all its employees, in particular Robert John Turner, Mark Anthony Marlowe and Murray Dean Brooks, contrary to section 8(1) of the Occupational Health and Safety Act 2000. The particulars of the charge are: 1. The defendant is the successor of a local council ("the former council") of the same name and is liable to prosecution under the said Act by reason of section 123 of the said Act. 2. At all material times both the former council and the defendant were employers. 3. At all material times the former council was engaged in road upgrade works on Gocup Road, Tumut ("the works"). 4. At all material times Robert John Turner, Murray Dean Brooks and Mark Marlowe ("the workers") were employed by the former council. 5. At all material times the workers were performing tasks associated with the works being the covering and turning of traffic control signs. 6. The former council: a) Failed to provide and maintain the system of work that was safe and without risk to the health of its employees. b) Failed to ensure that the working environment of its employees was safe and without risk to the health of its employees. c) Failed to provide adequate information, instruction, training and supervision as was necessary to ensure its employees' health and safety at work. d) Failed to warn or adequately warn motorists of the presence of the workers on the roadway. e) Failed to implement traffic control measures so as to guarantee the safety of the workers while they were present on the roadway. 7. As a result of the abovementioned failures, Robert John Turner, Murray Dean Brooks and Mark Marlowe were placed at risk of injury. 5 On the day of the sentencing hearing, the prosecutor sought and was granted leave to amend the Application for Order. The amendments were to paragraph 6 of the particulars so that the paragraph read: 6. The former council: a) Failed to provide and/or maintain a system of work that was safe and without risk to the health of its employees. b) Failed to provide adequate information, instruction, training and supervision as was necessary to ensure its employees' health and safety at work. c) Failed to adequately warn motorists of the presence of the workers on the roadway. d) Failed to implement traffic control measures so as to guarantee the safety of the workers while they were present on the roadway.

The defendant pleaded guilty to the amended charge. 6 Tendered in the proceedings was an agreed statement of facts. Annexed to the agreed statement were the following documents: (1) Factual Report of Inspector Mark Barber dated 4 November 2003. (2) Series of 9 photographs exposed by the Prosecutor on 3 November 2003. (3) Series of 7 photographs exposed by Anthony Shaw, Risk Management & Safety Officer of the former council, on 31 October 2003. (4) Traffic Control Plan TSC-TCP-MR279GFRSL. (5) Document entitled "Tumut Shire Council Activity Specification - Traffic Control" issued 6 March 2003. (6) Australian Standard 1742.3-2002 Manual of Uniform Traffic Control Devices Part 3: Traffic Control Devices for Works on Roads. (7) Clause 3.4 of the Roads &Traffic Authority manual Traffic Control at Work Sites issued October 1998. (8) Clause 3.4 of the Roads &Traffic Authority manual Traffic Control at Work Sites issued September 2003. (9) Clause 9.1 of the Roads &Traffic Authority manual Traffic Control at Work Sites issued September 2003. (10) Document entitled "Tumut Shire Council Activity Specification - Traffic Control" issued 8 May 2005. (11) Document (diagram) entitled Installing/Removing Signs or guideposts dated 1 September 2006 .

7 Pertinent facts extracted from the agreed statement (with some editing not affecting the substance of the statement) are set out below: (1) The defendant is the successor of a local council ("the former council") that had the same name as the defendant. The defendant is liable to prosecution under the Act by reason of section 123 of the Act. The worksite (2) As at October 2003 Gocup Road had a traffic volume of approximately 1300 vehicle movements per day. There were peaks in the daily volume of traffic in the mornings and evenings due to people commuting to and from work. Heavy vehicle traffic occurred throughout the day. The road surface is bitumen. The carriageway is bordered by two unbroken fog lines. Beyond the fog line on each side is a bitumen/gravel shoulder with a table drain. Two unbroken white centre lines divide the road. The road runs generally in an east-west direction. Traffic control measures (3) The former council implemented traffic control measures during the day while tree felling, removal and associated work was being performed. These measures included the implementation of Traffic Control Plan. The Traffic Control Plan required the erection of a series of traffic signs at intervals at either end of the worksite on Gocup Road. (4) The performance of traffic control duties by Messrs Turner, Brooks and Marlow ("the workers") required them prior to the commencement of the upgrade work each working day to turn the signs so that they faced towards oncoming traffic and to uncover other signs so that they could be seen by oncoming traffic. At the end of the roadworks each working day it was necessary for the workers to turn some of the signs so that they faced away from oncoming traffic and to cover other signs so that they could not be observed by oncoming traffic. The Roads & Traffic Authority imposed the requirement to cover/uncover and turn signs shortly after the commencement of work at the Gocup Road site. Prior to that requirement being implemented, it had been necessary to cover/ uncover and turn a lesser number of signs. System of work (5) The system of work followed by the workers was for one of them to walk from the centre of the worksite heading outwards along Gocup Road covering (in the afternoon) or uncovering (in the morning) the relevant signs. Meanwhile the other two workers would travel in a truck to the end of the worksite, turn around and then drive to three of the signs. These two workers upon arrival at each sign would park the truck on the shoulder of the road a short distance from the sign, get out of the truck and turn the sign either to face (in the morning) or face away from (in the afternoon) oncoming traffic. The truck was to be parked in a position that placed it between the 2 workers and oncoming traffic. All 3 workers would meet up at a point approximately mid-way between the work site and one of the signs. This task would be undertaken at both ends of the work site and would take up to an hour to perform. (6) The system of work required at least one of the workers to cross Gocup Road on several occasions. (7) Gocup Road had a posted speed limit of 100 kilometres per hour. Any change in that speed limit existed only when 80 kilometres per hour signs were positioned to face oncoming traffic. (8) The truck used by the workers was a Toyota Hilux utility vehicle. The truck was fitted with a single revolving orange beacon-style light mounted to the front of the vehicle's tray on the passenger side. The accident (9) The weather on the afternoon of 31 October 2003 was cold, wet and windy. It had been raining during the day. (10) Messrs Marlowe and Turner completed the task of turning two " 80 Ahead" signs. They then drove in the truck to the location of two "80 Roadworks" signs. Turner parked the truck with its driver's side wheels protruding slightly beyond the lane marking into the carriageway. With its engine left running, Messrs Turner and Marlowe then got out of the truck. Mr Marlowe completed the task of turning the sign on the left hand (when heading towards the work site) side of the road. Mr Brookes was having trouble turning the sign on the opposite side of the road (the wedge fixing the sign into the base was stuck). Mr Turner then stepped out onto Gocup Road in order to cross to the right hand side to assist Mr Brookes with a hammer when a car travelling in the direction of Gundagai struck him. (11) Mr Turner had been at work since 6.30 am. Messrs Turner, Marlowe and Brookes rotated duties every two hours. This meant that one team member was on duty at each end of the work site and the third team member was on a break during that time. The turning of the sign that Mr Turner was crossing the road to assist with was the last task required to be performed by the workers before ceasing work for that week. (12) At the time of the incident the single revolving beacon-style light on the truck was operating. With the exception of the "Roadwork Ahead" signs and the "80 Road Work" sign on the right hand side of the road, this light was the sole warning signal to motorists. There was no specific warning to motorists of the presence or potential presence of persons such as the workers on the road. Since the speed restriction sign had been removed on the left hand side, no speed restrictions were in place - motorists were legally permitted to be travelling at 100 kilometres per hour. No "Patrol" sign was in position. (13) The driver of the car that struck Mr Turner stated in a subsequent Police interview that she did not see the beacon-style light on the truck. Background to the accident (14) A risk assessment of the Gocup Road site carried out as part of the development of the former council's Project Management Plan stated in relation to traffic hazards that: "No site/ project specific hazards identified which are not covered by standard procedures" (15) As at 31 October 2003, the former council did not have in place a documented work procedure for the task being performed by the workers. Nor had the former council by that day undertaken any risk assessment in relation to the task of removing, covering or turning of traffic control signs. (16) The former council conducted a generic traffic control risk assessment on 10 January 2003. The risk associated with the initial erection of traffic control signs before the commencement of work was assessed as high. (17) (a) A report dated 4 November 2003 provided to WorkCover by the former council into the circumstances of Turner's accident stated that: "Erecting signage at the start of work, and covering signage to close down job is recognised to be one of the most dangerous aspects of the traffic control task." (b) The report identified the use of 2 flashing lights and a patrol sign as "standard practice". (c) The report stated in relation to the work method contained in the document referred to in paragraph (18) below: "Also, it needs to be clarified that this means that signs should be erected/covered along one side of the road, then back along the other rather than working on one side of the road, then walking across to the sign on the other side". Work method statement (18) A generic traffic control procedure document entitled "Tumut Shire Council Activity Specification - Traffic Control" developed by the former council on 6 March 2003 stated: 5. Set out signs and other devices, paying attention to the following: · Consider safety of those setting up signs - use parked vehicle with 2 flashing lights and "Patrol" sign as a batter (sic) between adjacent traffic & those erecting sign

· begin set out of signs from the farthest points with the advanced warning signs (in many cases 'roadwork ahead')

· Ensure signs are mounted securely, won't blow over with passing trucks, don't stick out into traffic lanes, are clearly visible and don't create sight distance problems (e.g. driveways, intersections)

· Parawebbing, fencing, barricades, cones, lights etc are to be set up as per the TCP. Consider the protection given by these and if other controls are needed around work area

· Check that timing on Traffic Lights (is used) is appropriate for the site - especially up hill … 9. Cover any signs that do not apply during breaks - e.g. "flagman ahead". … 13. Remove traffic controls and collect/cover signs that are no longer required. Uncover any signs that were covered during the traffic control if the site is now back to normal. (19) The document referred to in the preceding paragraph represents the entirety of the documentary material issued by the former council as at 31 October 2003 prescribing the procedure for the installation, covering and removal of traffic control signs. Previous warnings from site supervisor (20) Roger Reakes (the site supervisor) said when questioned by Inspector Barber that in his 22 years of experience in construction he had never encountered a situation where it was necessary to turn the large number of signs as was required at the Gocup Road site. Reakes also stated that he had raised his concerns regarding "how silly it was and putting people all over the road" with Jason Gordon (chief executive officer of Snowy Works and Services) and Ben Lawson (works engineer) of the former council. Reakes said that in response he was told that the turning of the signs was a requirement of the RTA and: "…that's what they want, that's what we give them". (21) Mr Christopher Adams was the General Manager of the former council as at 31 October 2003. When interviewed by Inspector Barber Mr Adams stated: "I would regard the work team as being on that job as being our best work team. They have a very good record of following procedures and the keeping of records (sic) … I think that at this site was probably unique as being hazardous location due to the speed and the amount of traffic on the roadway." (sic) Post-Incident Changes to System of Work (22) On 8 May 2005 the defendant issued a revised version of the document referred to in paragraph 29 entitled "Tumut Shire Council Activity Specification - Traffic Control". The revised document states: "11. The removal of traffic controls and collection/ recovering of signs that are no longer required (where work extends over more than 1 day) as well as uncovering any signs that were covered overnight if the site is now back to normal must be done paying attention to the following. Refer to the standard TCP for set up/ removal of signs · Consider safety of those removing signs - where site conditions permit, use a parked vehicle with 2 flashing lights and a "Patrol" sign as a barrier between adjacent traffic & those erecting sign (this should be parked on the shoulder, not the lane blocking traffic). The vehicle should be left 2 car lengths back so that if it is hit, it will not be pushed into those removing the sign.

· If it is not possible to use a vehicle as a barrier (e.g. a narrow road) consider setting up temporary traffic controllers to stop traffic so that the sign can be removed safely, or do the work without the vehicle as a barrier but have a spotter telling people when to move away from the road when a vehicle is coming

· Use a spotter to watch for traffic while someone removes the sign

· Remove parawebbing, fencing, barricades, cones lights etc first, then intermediate signs. Leave the advanced warning signs till last (these at least give some indication that there are workers on the road ahead).

· Remove signs from one side of the road at a time i.e. do not cross the road to set out signs, finish one side then go back along the other side." (23) On 1 September 2006 the defendant issued a handwritten document entitled Installing/Removing Signs or guideposts which is a diagrammatic illustration of procedures to be followed while performing the above task. Training received by the Workers (24) The system of work being followed by the workers was the established system at the Gocup Road construction site. It was the system known to the workers and their supervisor (Mr Reakes). This was also acknowledged by Ben Lawson, the then Works Engineer of the former council, in his WorkCover interview on 10 November 2003. (25) Although the workers had undergone a Roads & Traffic Authority traffic control course, that course did not cover the task being performed at the time of the incident involving Turner. In addition to the traffic control course, the workers had all undertaken the general OHS Construction Induction. Turner and Brookes had also undertaken training in the 'Snowy Works and Services Activity Specification - Traffic Control' and had participated in the ''Snowy Works and Services Safety Handbook Training' program. (26) The generic traffic control procedure document referred to in paragraph (18) was provided to the workers as part of their induction training for the Gocup Road construction site. No other written instruction was provided to the workers in relation to removal/ covering/ turning of signage at the worksite. 8 The defendant's evidence consisted of an affidavit of Benjamin James Lawson. Mr Lawson was employed by the defendant in the position of Chief Executive Officer of Snowy Works and Services ('SnowyWS'), the works unit of the Council. On the day of the incident Mr Lawson was the Works Engineer for the Council. Mr Lawson was required for cross-examination. 9 In his affidavit Mr Lawson described his qualifications, work history and experience. Mr Lawson is a certified practising engineer and registered on the Institution of Engineers Australia National Professional Engineers Register in the fields of Civil Engineering and Management. Mr Lawson described the role of Works Engineer and Chief Executive Officer as follows: The role of Works Engineer with the Council included the following responsibilities: a. management of staff performing maintenance tasks on roads, bridges, water, sewerage and drainage assets; b. management of selected construction projects (some projects were handled by the then CEO, Jason Gordon, however roads projects were my responsibility); and c. the development and implementation of Council's integrated management system, which incorporates the management of Occupational Health, Safety and Rehabilitation issues as well as Quality Assurance and Environmental Management, to comply with the relevant Australian Standards including AS 4801:2001 : Occupational health and safety management systems - Specification with guidance for use . The role of CEO includes the following responsibilities: a. overall management of the construction and maintenance functions for Council, including management of contractors; b. management of Council's plant and equipment fleet; c. management of the business side of SnowyWS, which operates its own finance and human resources staff reporting to the SnowyWS board, and ultimately Council; and d. supervising the overall implementation of the integrated management system given my intimate knowledge of, and general commitment to, the system. 10 Mr Lawson also holds RTA accreditation for the following traffic control courses: a. Traffic Control Worksite Planning; b. Selecting and Modifying Traffic Control Plans; and c. Design and Audit of Traffic Control Plans. 11 In relation to the upgrade project on Gocup Road, Mr Lawson explained: Gocup Road carries about 1,300 cars per day, in total. This falls into the category of a low volume road under clause 1.4.6 of the Australian Standard, AS 1742.3-2002 : Manual of uniform traffic control devices - Traffic control devices for works on roads (the Standard) and clause 2.3 of the RTA Traffic Control at Worksites Manual version 3.1 dated September 2003 (the RTA Manual). The road was being upgraded because of extremely poor sight distance around and over a curve (about half a kilometre away from the site of the Incident) which had been the location of a number of Incidents, thus qualifying it for the Federal component of the project funding under the "black spot" program. The State funding was part of ongoing monies to improve the standard of the road generally. On the day of the Incident, the Project was in the first stage, namely clearing of trees that had to be removed prior to the commencement of earthworks. Robert [Mr Turner] was part of a specialist team of three whose role was to control traffic travelling through the Project works. 12 In relation to the Project Team, Mr Lawson deposed: The Project involved anywhere up to 15 employees and contractors, depending on what task was being performed at the time. I selected the team for the Project based on skill and experience. Many of the workers involved in the Project had over 15 years' experience in road construction and maintenance. The team was led by Roger Reakes. Roger was responsible for the day-to-day operations and direct supervision of all staff at the site. Apart from the traffic control team, there were operators for various plant including graders, rollers, loaders, excavators and trucks. My role involved project planning, budget development and development of the Project Management Plan as well as high level technical management of the Project. Since the Project was on one of Council's busiest roads, the traffic control team was selected based on their previous experience in similar work. Robert Turner ('Robert') and Murray Brooks ('Murray'), in particular, had experience on larger road construction jobs with Council in the past on similarly busy roads. The traffic control crew comprised of Robert, Murray and Mark Marlowe ('Mark'). Robert and Murray had worked with Council previously on similar projects as traffic controllers. Mark was less experienced, and this was his first time on a large project as a traffic controller. This crew were responsible for:

s maintaining them throughout the day (for example, if a sign was blown over by the wind from a passing truck);

s covering and turning signs that were not required to be displayed while work wasn't being carried out;

s controlling traffic during the day using the stop/slow bats (letting one lane of traffic through at a time, or stopping both directions when trees were being felled, etc); and

s communicating with the workers on the Project, notifying them when traffic was entering the site and which direction it was coming from. The 3 traffic controllers rotated duties so that they would each work for a period not exceeding 2 hours and then have a break for at least 15 minutes. This was in accordance with clause 4.6.5 of the Standard. While they were on their break from controlling traffic they might also help with other tasks like cleaning debris off the road when a tree was felled if the other team members needed a hand, but their main role was to control traffic. Each of the team members held an RTA approved Traffic Controllers Certificate, which permitted them to control traffic using a stop/slow bat. Further details of the team's training are located at Section I 'Training' of my affidavit. 13 In his affidavit, Mr Lawson described the Project Management Plan and the risk assessment process. That process involved the following: (a) On 10 January 2003, several staff of SnowyWS, including Murray Brooks, undertook a hazard identification for the task of traffic control generally. They assessed the risks of the hazards identified and developed control measures for this task. The 'Record of hazard identification risk assessment and control' is annexed to this Affidavit ... Of the hazards identified, the only one rated as high was initial erection of signs before work commences (and this would also apply, in reverse, to uncovering and turning signs). (b) On 22 October 2003, a site-specific risk assessment of the works involved in the Project was carried out by staff, including Murray and Robert, using the 'Site Hazard Identification Checklist'. This checklist is annexed to this Affidavit ... 14 Mr Lawson also described the induction process, which involved taking the team through all the site-specific issues that had been identified and the suitability of the Traffic Control Plan. In relation to the implementation of the traffic control plan Mr Lawson deposed: Work at the Project was undertaken in accordance with the requirements of the Traffic Control Plan which is included in appendix 3 to the Project Management Plan, annexure 1 to this Affidavit. The Traffic Control Plan detailed the signage requirements for the Project. The traffic control work Section 5 of the Traffic Control Procedure (annexure 3) described the procedure for erecting traffic control signs. Each of the speed zone signs was supported by a post, which was inserted into a hole in the top of a spike (known as an 'Oz-spike') which was driven into the ground. A wedge was used to secure the post in the spike so that it would not turn with the wind from passing trucks. The purpose of the signs was to forewarn motorists that there were people doing work on or near the road, and to slow the traffic down as it approached the site of the Project. The Traffic Control Plan required that signs be erected over a distance of 520 metres on each end of the Project works. The sequence of signs was as follows: (a) 'Roadwork ahead' on the left hand side of the road; (b) '80 ahead' located on each side of the road; (c) '80 roadwork' located on each side of the road; (d) '40 roadwork' located on each side of the road; (e) A road worker symbol on the left hand side; (f) A flagman symbol on the left hand side; (g) 'Prepare to Stop' on the left hand side. The 40 kilometres per hour speed zone signs, the two symbol signs and the 'Prepare to Stop' sign were only permitted to be displayed whilst workers were on site (in accordance with the Standard and the Direction to Restrict Traffic), so they had to be covered or turned at other times. While technically, under the Standard, the 80 kilometres per hour speed zone signs were only permitted to be displayed where there was some disturbance to alignment or pavement surface which made unrestricted speeds undesirable on safety grounds, Council's usual practice during roadworks was to keep these signs up overnight as it reduced the time spent by workers in changing signage. Within a week after the date of the Incident, work would have started on the road surface and the overnight use of the 80 kilometre per hour speed zone signs would have been permitted. It is important to cover signs that do not apply so that drivers don't become complacent. If drivers see a sign and slow down but the road surface is not disturbed or they do not any see workers, they are less likely to obey signs at other worksites they drive through. When erecting signs and when setting them up before the day's work started, the Traffic Control Procedure required the traffic control team to start with the sign furthest from the work site and work inwards towards the worksite (as per the Standard and the RTA Manual, although it should be noted that the RTA Manual recognises that for difficult sites, special arrangements may be required and that this may mean that signs are removed in the same order as they were erected to allow the work vehicle to move in the direction of normal traffic flow). The Traffic Control Procedure did not specify a procedure for covering and removing signs at the completion of the day's work. When I drafted the Traffic Control Procedure, I expected that it would be understood that the covering and removal of signs should begin at the site of the works and gradually move outwards to the signs located farthest from the centre of the works. Although this was my understanding, I accept that this is not adequately explained in the Traffic Control Procedure. The Traffic Control Procedure also required that the erection of the signs was undertaken using a vehicle with two flashing lights and a "Patrol" sign as a 'batter' [sic] between traffic and the workers erecting the signs. While I accept that the Traffic Control Procedure does not, specifically, state that this should also occur when turning and covering signs at the end of each day, this was my expectation when drafting the Traffic Control Procedure. Contrary to the Traffic Control Procedure, the vehicle used by Robert and Murray was fitted with only one revolving light and did not have any "Patrol" sign. At the time, this was the only vehicle that was available and was due to be sold. Since it was to be sold, the light bar (with 2 flashing lights and a 'PATROL' sign) had been removed (all Council's vehicles have these fitted as standard). Because the vehicle was retrieved from sale, only a single flashing light had been installed. A copy of a photo showing the usual set up for Council's work vehicles, with 2 lights and patrol sign, is annexed to this Affidavit ... The requirement to turn or cover the signs As stated above, Council's usual procedure was to only remove the 40 kilometres per hour speed zones, pictorial signs and 'prepare to stop' signs from display at the end of the day. The 'roadwork ahead' and 80 kilometres per hour signs were usually kept on display to reduce the exposure of workers in turning signs at the beginning and end of each day. The 'roadwork ahead' signs are used to warn motorists that there may be something happening ahead, be it simply altered road pavement or workers setting up signs for the day's work. The 80 kilometres per hour zone was permitted to be displayed out of work hours under clause 4.5.3 of the Standard (only when traffic safety issues required it, for example, alteration of the road surface) and was also authorised under the Direction to Restrict Traffic. On 22 October 2003, I received an oral direction from the RTA requiring the signs to be covered outside work hours. I had a telephone conversation with the local RTA officer, Rhod Stevens, Road Safety and Traffic Officer, during which he said words to the following effect: 'I've just driven through your site at Gocup Road and given that you haven't changed the road surface, you shouldn't have the 80 kilometres per hour signs up when you're not working there.' 15 Mr Lawson described the training provided to the three workers, which included general training (e.g., Snowy WS Safety Handbook Training - a general overview of OHS management system policies and processes), task-specific training (e.g., RTA Traffic Controller Ticket) and site-specific training. 16 In relation to the incident itself, Mr Lawson stated: At the time of the Incident Robert, Murray and Mark were each wearing a high visibility safety jacket with reflective strips on the arms and across the back and body. This was compulsory personal protective equipment for traffic controllers. Council acknowledges that the system of work which was provided and being applied at the time of the Incident in relation to the covering and turning of signage at the end of the day's work, as described in the statement of agreed facts, was inadequate. It was inadequate because it permitted workers to cross the road when covering and turning signs. Although it was implicit in the Traffic Control Procedure that workers should not cross the road, because a vehicle should always be placed between workers and traffic, this was not spelt out in the Traffic Control Procedure with sufficient clarity. Council also acknowledges that, as a result of the inadequacy in the Traffic Control Procedure, the workers were not provided with sufficient information, instruction, training and supervision in relation to the turning and covering of signs at the end of the day's work. Council accepts that there was inadequate warning given to motorists of the presence of the workers involved in the covering and turning of the signs because the utility was equipped with only one flashing light and was not equipped with a 'Patrol' sign. 17 Events occurring after the incident were described by Mr Lawson in the following terms: I arrived at the Work Site about 1 hour after the Incident, having travelled back from a training course in Bateman's Bay. When I arrived at the site I started to make inquiries about what had happened. Once the Police had completed their inquiries, I instructed the team to turn the final 80 kilometres per hour sign that Murray had been working on. On Monday 3 November, I met with the team to discuss what we could do to improve the work method. Work recommenced on the following day. I instructed the team to leave the 80 kilometres per hour signs up while out of work hours. I acknowledge that this was not in strict compliance with clause 4.5.3 of the Standard ... but I wanted to minimise the exposure of the workers to the hazards associated with changing the traffic control signs. We received no improvement notices or prohibition notices from WorkCover following the Incident. In the following weeks, further meetings took place involving relevant staff to review Council's traffic control procedures in the light of the Standard and the RTA Manual and to reflect on what may have contributed to the Incident. WorkCover conducted an investigation. Under cover of a letter from the CEO dated 4 November 2003, Council provided Mark Barber, our local WorkCover Inspector from Wagga, with a bundle of documents which included a summary of Council's investigation and the systems it had in place at the time of the Incident. I prepared this report and the material attached to it. A copy of this document is annexed to this Affidavit ... The 4 November report was prepared shortly after the Incident occurred. It was prepared during an ongoing process of review to work out how Council should deal with this situation. Since then, the new procedures referred to below have been developed which require that workers do not cross the road when covering and turning signs. Council acknowledges that if those procedures had been in place and adhered to, the Incident would not have occurred. After the Incident, I started revising the Traffic Control Procedure. On 8 May 2005 Council implemented the revised Traffic Control Procedure. The revisions are identified in and attached to the statement of agreed facts. The revised Traffic Control Procedure was issued to relevant Snowy WS teams, including the road construction team, by the OHS co-ordinator. I decided to support the Traffic Control Procedure during our 'tools down day' with a 2 hour presentation on installing/removing signs. This occurred in early September 2006. The handwritten traffic control plan was produced to facilitate this presentation and is referred to in and attached to the statement of facts. The diagram was given to 80 Snowy WS staff who were required to attend 4 workshops on this day, including my workshop. Groups of 20 attended each workshop and then rotated to the next presentation. In addition to using work vehicles equipped with 2 flashing lights and a 'Patrol' sign, Council now uses a 'workman ahead' pictorial sign on the back of utes as an extra warning. This means we do not have to put another sign out on the road which minimises the exposure of the workers to traffic. ... 18 In relation to the defendant's occupational health and safety system, Mr Lawson stated: Council's OHS Management System has been recognised to be of a high standard. Council has been prequalified with the RTA to the "R5" level since 14 October 2003. This means we are eligible to tender for roadworks up to the value of $5M. The prequalification scheme considers compliance of the 'paper' system and also the practical implementation of the system to the RTA Standard G22 Occupational Health & Safety (Major Works). This standard satisfies the requirements of Australian Standard 4801:2001 Occupational Health and Safety Systems - Specification with guidance for use . A team of RTA and external auditors undertakes an annual audit of our projects. The Project was audited in April 2004 by GHD who had conducted an RTA audit the previous year on a similar project. The audit was not prompted or undertaken because of the Incident, but rather was arranged in order to maintain our R5 prequalification, demonstrating ongoing compliance to the relevant Standards and implementation of the management system. We were the first local government organisation in NSW to attain the R5 prequalification level. I understand that Gosford City Council (a much, larger Council with about 1300 employees) is now at this level, but for at least a couple of years we were the only one. There are only about 20 other organisations who have achieved this prequalification (or higher) in New South Wales. 19 Under the heading "Contrition" Mr Lawson deposed: After the Incident I assisted Robert's partner and family members by arranging accommodation for them at Council's expense while he was in hospital in Canberra for a period of 7 days. I also arranged for payment of his wages to be continued until the workers compensation claim was sorted out. Council arranged to provide counselling services to the family to be used at their discretion. This was arranged through Council's employee assistance program, which makes counselling available on a confidential basis. Details of these sessions are not made available to Council. Council is only advised of a charge for the service when it receives an invoice for the service, which does not disclose the identity of the person attending the counselling. Council deeply regrets the circumstances which led to the Incident and resulted in Robert's tragic death and the consequent distress to his family and friends, including a number of his Council workmates. Council is committed to ensuring the safety of all of its employees and members of the public and will continue to review and improve its systems of work to achieve this objective. Consideration 20 In considering what is an appropriate penalty in this case, it is convenient to commence with an assessment of the offending conduct with a view to determining the nature and quality of the offence: See Lawrenson Diecasting Pty Limited v WorkCover (NSW) (1999) 90 IR 464 at 475. This involves an assessment of the seriousness of the breach. Although the damage or injury caused by the breach does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: See Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. See also Capral Aluminium v WorkCover Authority (2000) 49 NSWLR 610 at [94] and [95]; WorkCover Authority (NSW) v McDonalds (2000) 95 IR 383 at 428; and Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32]. 21 The offending conduct may be assessed by reference to the defendant's failures to ensure safety. The first of these was a failure to provide and/or maintain a system of work that was safe and without risk to the health of its employees. Critically, the system of work involved at least one of the workers to cross Gocup Road on several occasions as they covered or uncovered the traffic control signs. Whilst there were generic traffic control procedures in place and warnings about the dangers of traffic, the defendant did not have in place a specific documented work procedure for the task of covering and uncovering signs. Nor had the defendant, up to and including the day of the accident, undertaken any risk assessment in relation to the task of removing, covering or turning of traffic control signs. 22 It is not hard to imagine that on a cold, wet and windy day, nearing the end of work for the week, that in the absence of stringent safety procedures and a system specifically designed to prevent the risk of being struck by a motor vehicle whilst turning or changing the signs on the road, workers could become inattentive or careless for their own safety. 23 Whilst individual workers will carry a responsibility for their own safety, especially in crossing roads where the speed limit may be 100 kilometres per hour, that does not relieve the employer of the responsibility of anticipating the possibility that inattention or carelessness may set in and doing all that is reasonably practicable to ensure the risk of collision is avoided. A risk assessment would be an essential step in that process, covering every aspect of the worker's routine. Here, the crucial assessment was not undertaken. 24 This is not to say the defendant had no system of work in place in relation to safety. On the contrary, it is apparent that safety was a high priority for the defendant and considerable effort had been directed towards assessing the many risks associated with traffic control. However, the system contained a critical flaw to the extent that it did not adequately address the risks associated with workers crossing the road to change traffic control signs. After the accident the defendant adopted, amongst other safety measures, a system of using a spotter to watch for traffic while a sign was being removed. If this had been part of the system of work prior to the accident it may well have avoided the risk and prevented the death of Mr Turner. 25 The defendant, albeit faintly, submitted that in: [A]ssessing the objective seriousness of the deficiencies in the system of work, et cetera, that the consequences in this case did occur at least in some part as a result of the carelessness of Mr Turner. He walked out directly into the path of an oncoming vehicle. Clearly the Council's duty extended to ensuring the safety of careless and negligent - even wilfully disobedient - employees and that goes to liability but in my submission, in assessing penalty, that circumstance is also relevant. 26 Riley v Australian Grader Hire (2001) 103 IR 143 was an appeal from Ms P O'Shane, Local Court Magistrate sitting as an Industrial Magistrate. In a prosecution under s 15(1) of the Occupational Health and Safety Act 1983 her Honour gave the defendant the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999. The Full Bench found her Honour had erred and made orders convicting the defendant and imposing a fine of $7,000. In doing so, the Full Bench observed at [15]: The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. 27 The Full Bench noted with approval the observations of Bauer J in WorkCover v Maine Lighting Pty Ltd (1995) 100 IR 248 at 257: Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry.

28 It is clear from Riley v Australian Grader Hire that a defendant's obligations under the Act to ensure safety are not diminished because of the error or negligence of an employee. However, error or negligence (or inadvertence, inattention, haste and even foolish disregard of personal safety) may reflect on the degree of culpability of the employer for the purposes of sentencing. I accept I should follow that principle in this case.

29 The second failure was a failure to provide adequate information, instruction, training and supervision as was necessary to ensure its employees' health and safety at work. Again, the flaw in what was, generally speaking, a good system employed by the defendant for providing information, instruction, training and supervision, was that there was a failure, in each of these respects, to adequately address the risks associated with workers crossing the road to change the signs. 30 The third failure was a failure to adequately warn motorists of the presence of the workers on the roadway. There was only one flashing light on the utility vehicle whereas there should have been, as the defendant conceded, two. Moreover, the agreed statement of facts indicated that with the exception of the "Roadwork Ahead" signs (which were at approximately 520 metres from the worksite, and located on the left hand (when travelling towards the work site) side of the road) and the "80 Road Work" sign on the right hand side of the road, the light on the vehicle was the sole warning signal to motorists. It was agreed that there was no specific warning to motorists of the presence or potential presence of persons such as the workers on the road. Since the speed restriction sign had been removed on the left hand side, no speed restrictions were in place; motorists were legally permitted to be travelling at 100 kilometres per hour. Further, no "Patrol" sign was in position. 31 The fourth failure was a failure to implement traffic control measures so as to guarantee the safety of the workers while they were present on the roadway. This is a catch-all particular - probably duplicating the first and third failures - and I do not propose to address it any further. 32 A further consideration in assessing the objective seriousness of the offence is the extent to which the risk was foreseeable. In this case the risk to a worker was a risk of injury or death from being struck by a motor vehicle whilst turning or changing the signs on the road. The risk was obvious. Mr Lawson conceded in his evidence that the risk was "one of our highest safety risks". Further, a report into the circumstances of Mr Turner's accident dated 4 November 2003, and provided to WorkCover by the defendant, stated that: Erecting signage at the start of work, and covering signage to close down job is recognised to be one of the most dangerous aspects of the traffic control task. 33 In circumstances where the risk was obvious and the defendant was aware of the fact that the risk of injury or death from being struck by a motor vehicle whilst turning or changing the signs on the road was one of the highest safety risks: the failure of the defendant's system of work to specifically address the risk; the inadequate information, instruction, training and supervision; and, the failure to adequately warn motorists of the presence of the workers on the roadway, increases significantly the seriousness with which the Court should view the offence, notwithstanding the generally competent approach taken by the defendant to safety management. 34 The existence of simple and straightforward remedial steps which could have been taken by the defendant to avoid the risk to safety are relevant to assessing the seriousness of the offence: See Dept Mineral Resources v Kembla Coal & Coke (1999) 92 IR 8 at 27; WorkCover Authority of NSW (Inspector Glass) v ACI Operations Pty Limited (unreported, Matter No CT 1025 of 1993, 18 March 1994); and, Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275. 35 It was not until May 2005 that the defendant issued a revised document on traffic control procedures. The delay was said to have been caused by disagreement within the defendant about what was the most appropriate and effective procedure to introduce. In any event, there could have been no reasonable objection to installing two flashing lights on the utility vehicle, or using a spotter to watch for traffic while someone removes the sign, or to avoid criss-crossing the road by removing signs from one side of the road at a time. These were simple and straightforward steps that were always available to be implemented. 36 General and specific deterrence are further considerations to be taken into account: Capral Aluminium at [71] to [80]. With respect to general deterrence, there are 152 local councils in New South Wales, most if not all would have some responsibility for the maintenance, upgrade or repair of roads and would employ or contract workers for that purpose. It is appropriate for the Court to fix a penalty that has regard for the need for general deterrence. 37 The prosecution submitted particular regard should be paid to the need for any penalty to incorporate an element for specific deterrence. The submission was based on the agreed facts that the defendant did not implement revised written traffic control procedures for 18 months and did not make a formal presentation to employees on the revised procedures until September 2006. 38 Whilst the Court accepts there was legitimate disagreement within the defendant's management on what were appropriate traffic control procedures and whilst some new safety measures were implemented shortly after the accident, there is no doubt that the defendant did not act in a timely and decisive way following the accident. There were serious flaws in its system of work in relation to an obvious and highly dangerous aspect of its traffic control procedures. A man was killed as a consequence. The circumstances required prompt action lest other workers remained at risk. It is untenable for an employer to continue with a system of work that is, or may be, unsafe while it debates what should be done. That the defendant took from May 2005 to September 2006 to explain to workers, in formal session, how the revised traffic control procedures were to operate was also an unacceptable delay. 39 Having regard to these observations, the Court proposes to fix a penalty that has appropriate regard for the need for specific deterrence in this case.

40 The Court is required to give careful attention to maximum penalties because, firstly, the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick: See Markarian v R (2005) 215 ALR 213 at [31]. The defendant has no previous convictions under the relevant legislation. Accordingly, the maximum penalty in this case is $550,000: Section 12 of the Occupational Health and Safety Act; s 17 of the Crimes (Sentencing Procedure) Act. 41 There are a number of factors that are required to be taken into account in mitigation. The first is that the defendant has pleaded guilty to the amended charge. The prosecutor submitted, however, the plea was not entered at an early stage. Essentially, the prosecutor contended that whilst he amended the charge, the amendments did not impact in any significant way on the gravamen of the original charge and that it was open to the defendant to plead to the original charge and not admit to any particular of the charge to which it took objection. 42 For the defendant it was submitted the amendment was significant. The original charge alleged that the defendant "Failed to ensure that the working environment of its employees was safe and without risk to the health of its employees". The very broad language of "working environment" presented the defendant with some difficulty in terms of entering a plea, it was submitted, because it raised a concern that the prosecutor was alleging that certified traffic controllers could not be on or near the roadway. 43 I am not certain the language was so broad as the defendant contended but, in any event, when the issue was raised with the prosecutor in November 2005 it led to the amended charge to which the defendant pleaded guilty. I am prepared to accept there was a plea of guilty entered at an early stage and will discount the penalty accordingly. 44 I accept that the remorse expressed by the defendant was genuine. I also accept the defendant is a good corporate citizen and apart from this offence has not come to the attention of the Court on any previous occasion. Finally, in terms of subjective factors, I accept there was cooperation by the defendant with the WorkCover Authority in its investigation of the matter. 45 Having regard to all of the relevant circumstances, I have determined that an appropriate penalty in this case is $160,000. Orders

46 The Court makes the following orders: (1) The offence is proven and a verdict of guilty is entered. (2) The defendant is fined an amount of $160,000 with a moiety thereof to the prosecutor. (3) The defendant shall pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matter may be referred to the Registrar for assessment.

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